August 6, 2019

Guv accuses EPA of neglecting duties in PFAS contamination inaction

Gov. Michelle Lujan Grisham during her 2019 State of the State address.

Governor Michelle Lujan Grisham criticized the EPA for its refusal to join the state’s lawsuit against the Air Force for PFAS contamination at two bases in the state.

PFAS, or per- and poly-fluoroalkyl substances, are toxic, human-manufactured chemicals that move through groundwater and biological systems. Human exposure to PFAS increases the risk of testicular, kidney and thyroid cancers as well as other severe illnesses. The chemicals were used in firefighting foam in military bases across the country, including at Cannon and Holloman Air Force Bases, until 2016. The New Mexico Environment Department (NMED) found “significant amounts of PFAS” in the groundwater, under both bases.

The Air Force has since discontinued the use of the chemicals.

New Mexico Attorney General Hector Balderas and NMED filed a complaint in federal district court in March, asking a judge to compel the Air Force to act on cleanup at the two bases near Clovis and Alamogordo, including providing funding.

Last month, the state filed a preliminary injunction in federal court to get the Air Force to regularly test groundwater and surface waters, provide alternate water sources for those affected and provide voluntary blood tests for those who may have been exposed to the toxic chemicals.

The state had also asked the EPA to “take an active role in New Mexico judicial enforcement efforts related to PFAS contamination at Cannon AFB and Holloman AFB,” Maddy Hayden, PIO for NMED, told NM Political Report. She said such a role might include “legally joining the imminent and substantial endangerment judicial action, taking independent administrative action, [and] providing technical expertise and support.”

The EPA said it won’t join the state in litigation, saying it is “not permitted to bring a judicial action against another Executive Branch department or agency,” in a letter to the Governor dated July 19. “EPA’s direct and confidential participation in judicial litigation against DOD would conflict with the unitary and uniform execution of the law.”

But Lujan Grisham said the agency is not fulfilling its commitment to New Mexicans.

“[EPA’s] decision to not do everything under its current enforcement authorities–whether judicial or administrative–is inconsistent with its mission to protect public health and the environment. Further, it is a demonstrative example of EPA’s failure to uphold compliance with federal environmental laws,” Lujan Grisham said in an August 2 letter to EPA Administrator Andrew Wheeler.

She added that Wheeler had “personally committed” to U.S. Senator Tom Udall “to assist NMED with legal and technical assistance in a confidential manner” at an April Senate Appropriations hearing.

The EPA said it has provided technical assistance to the state in the form of fact sheets on PFAS in dairy, and a webinar presentation on the contaminants.

Lujan Grisham said that’s not enough.

“Providing factsheets and offering webinars are not meaningful legal and technical assistance in pursuit of state and federal claims that would compel the U.S. Air Force to take responsibility for delineating the PFAS plume, remediating it and protecting our communities,” she said in the letter.

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The New Mexico Environment Department (NMED) fined the United States Air Force $1.7 million for multiple violations of state law regarding PFAS chemicals. NMED announced late Thursday that the department issued an administrative compliance order to the Air Force for unlawfully discharging wastewater without a groundwater permit at Cannon Air Force Base since April 1, 2019.

The state of New Mexico wants a federal court to compel the Air Force to address contamination at two U.S. Air Force bases. The contamination comes from PFAS, a class of chemicals that came from the use of a since-discontinued firefighting foam at Cannon and Holloman Air Force Bases.

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